AF v Secretary of State for Work and Pensions (DLA) (Recovery of overpayments : misrepresentation) [2015] UKUT 266 (AAC)

UKUT-AAC

AF v Secretary of State for Work and Pensions (DLA) (Recovery of overpayments : misrepresentation)

[2015] UKUT 266 (AAC) · 2014-08-21

[1]It is very difficult to know where to start with this appeal.

[2]This appeal is one of two related appeals. The present case, CDLA/5548/2014, concerns the adult daughter (“the daughter”) of an appellant (“the mother”) in another Upper Tribunal appeal under reference CDLA/5547/2014. Both mother and daughter, who lived at the same address, had been in receipt of disability living allowance (DLA) for some years. In 2014 the Secretary of State decided that the daughter had not been entitled to DLA from the outset of her claim in 2001, creating a recoverable overpayment of over £53,000. A disentitlement and overpayment decision was also made in respect of the mother, although in her case not going back to the start of her claim.

[3]The respective appeals of the daughter and her mother were heard on the same day by the same First-tier Tribunal (FTT). Both appeals were dismissed. The FTT issued what were undoubtedly lengthy and in many respects detailed statements of reasons in both cases. I gave both the daughter and her mother permission to appeal. In doing so, I indicated that I proposed to allow both appeals, set aside the FTT’s decisions and remit the cases to be re-heard by a fresh FTT. Both parties have agreed to that course of action.

[4]It follows that the daughter’s appeal against the Secretary of State’s original decision now needs to be reheard by a new FTT. I cannot predict what will be the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the re-hearing of the appeal before the new FTT will succeed on the facts . As I indicated when giving permission, there may be a number of difficulties with the daughter’s case.

[5]However, I conclude that the FTT’s decision on the daughter’s appeal involves several errors of law for the reasons given when granting permission to appeal. I therefore allow her appeal to the Upper Tribunal, set aside the FTT’s decision and direct a re-hearing before a new FTT.

[6]The FTT’s errors of law in the daughter’s case can be summarised thus:(1) the FTT failed to address the positive evidence in favour of a finding that the daughter was entitled to DLA at the date of claim in 2001 and failed to identify an appropriate ground for revision;

(2) the FTT failed to show how the requirements of section 71 of the Social Security Administration Act 1992 were satisfied;

(3) the FTT failed to explain what it made of the extensive further evidence submitted late on behalf of the daughter;

(4) the FTT also failed to consider the admissibility of the late evidence and the possibility of an adjournment to allow it to be properly considered.

[7]I recognise that the FTT found the daughter’s evidence not to be credible in certain important respects. Credibility, of course, is a matter for the FTT to judge. However compelling the credibility findings, they cannot excuse the due process failings that took place in this case (and in the mother’s appeal).

[8]I also note that the FTT hearing date was chosen to accommodate a plea and directions hearing the following day in the criminal courts. This urgency was plainly not at the appellants’ behest as there were repeated applications for a postponement of the FTT hearing. The question of “who goes first” in such cases involves the exercise of judicial discretion ( Mote v Secretary of State for Work and Pensions

[2007] EWCA Civ 1324

, reported as R(IS) 4/08). It is unclear to me whether the FTT in this case properly considered the exercise of that discretion. Be that as it may, the four grounds identified above mean it is inevitable that I allow this appeal to the Upper Tribunal.

[9]The following lengthy extract from the grant of permission explains why I have been driven to this conclusion. I need say no more. ‘4. What is clear to me, on reviewing the files, is that as a matter of law there are a number of serious problems with the way that the First-tier Tribunal went about its business. This case, to use the vernacular, is a car crash. Indeed, when taken with its companion appeal CDLA/5547/2014, it is a mini motorway pile-up. 5. I am therefore giving the Appellant permission to appeal to the Upper Tribunal. I also propose to allow the Appellant’s appeal to the Upper Tribunal and send the case back for a proper re-hearing before a new First-tier Tribunal (FTT). Abbreviated case management directions follow to indicate what happens next in this appeal. In my view the sooner this appeal goes back to the FTT for a proper hearing the better. … The issue on the appeal to the FTT 7. Initially the Appellant apparently had a 2-year award of the higher rate of the mobility component of DLA and the middle rate of the care component from 05.11.2001 to 04.11.2003 (I say apparently as the file does not include the original decision, see [47]). On a delayed renewal claim an indefinite award at the same rates was made on 13.02.2004 with effect as from 06.11.2003 [152]. 8. Following a fraud investigation in 2013, during which the Appellant was interviewed under caution [440-492]), the DWP made a revision decision on 30.01.2014 [504]. The effect of this revision decision was to find there was no entitlement to either component of DLA as from the start date of the original award, i.e. 05.11.2001 (see the decision-maker’s lengthy explanation at [506-524]). An overpayment decision was made on 03.02.2014, quantifying the recoverable overpayment at £53,348.50. The Appellant appealed. The hearing at the FTT 9. The Appellant first instructed her current representative on 24.07.2014 [547], about a week after the first hearing date had been notified, and who immediately asked for a postponement of the hearing listed for 05.08.2014. The postponement application was refused [548]. The FTT therefore convened on 05.08.2014 some time at or shortly after 2 pm. The Appellant’s representative made a further adjournment application which was refused [550]. The FTT proceeded to view the DVD evidence from 2.30 pm. The viewing was finished at 3.30 pm. Almost right away the Appellant’s representative “appeared to have some sort of collapse” [553]. The FTT medical member insisted on an ambulance being called. Understandably the FTT then adjourned the proceedings.

[10]The FTT further directed that(a) the case was adjourned part-heard for the same panel;

(b) the Appellant’s appeal and her mother’s own appeal (which had been listed for 07.08.2014) were to be re-listed together for 21.08.2014, both appeals to be heard by the same panel;

(d) any additional evidence had to be served on the FTT and all parties “at least 7 days before the hearing” i.e. by 14.08.2014 [555].

[11]A further postponement request was made on 13.08.2014 [556], arguing that the representative did not have sufficient time to review the evidence and prepare the case for hearing on 21.08.2014. On 14.08.2014 that application was refused [558]. On 18.08.2014 (the Monday before the hearing on the Thursday) the representative wrote [578] with further evidence for the Appellant [579-934]. It appears this bundle of 350 pages (+) was hand-delivered to the HMCTS office on 19.08.2014 [980]. This extensive bundle included medical evidence and copious documentation in relation to occupational health involvement at the Appellant’s place of work. There were also several detailed testimonials from people who knew the Appellant well,

[12]So the hearing of both appeals took place on 21.08.2014, the Appellant’s in the morning and her mother’s in the afternoon. There is a detailed record of proceedings for the Appellant’s appeal [559-576]. The FTT decided to confirm the decision under appeal and so dismissed the appeal [577]. The FTT also gave its detailed reasons [940-959].

[13]The Appellant and her representative have set out detailed grounds of appeal [961-973] and also summarised on Form UT1. Some of these relate to pure issues of fact which were for the FTT to resolve and which do not give rise to any arguable error of law. I have reviewed the file in some depth and have identified the following four potential errors of law in the FTT’s approach and decision. Four potential errors of law by the FTT

[14]There may be other possible errors of law, but the following four difficulties with the FTT’s decision plainly arise on my analysis. (1) The basis for the DLA entitlement decision

[15]The FTT viewed the video and DVD evidence at the first hearing. This comprised a holiday video in Greece dating from 2004 and DWP surveillance conducted in 2013 and captured on DVD. The latter included following the Appellant around town, to football matches (where she was a season ticket holder) and (on one occasion) to the races at Aintree. Unlike the FTT, I have not viewed the video or DVD evidence. However, based on the FTT’s very detailed account of that evidence, I can quite understand why, putting it neutrally, there might well be a very large question mark over, at the very least, the Appellant’s continued entitlement to DLA.

[16]So it was critical to examine the original decision awarding DLA. The first actual decision on file is a decision made awarding higher rate mobility and lowest rate care on the late renewal claim, a decision taken on 20.01.2004 [129-133]. There is no copy of the original decision dated 02.04.2002 awarding benefit from the date of claim in 2001 [see 47]. However, the appeal file included the Appellant’s original DLA claim form from December 2001, a copy of which was seized in the course of a search at her address. In that form the Appellant reported that she had been diagnosed with MS in July 2001. She said that she suffered severe fatigue on walking and could only manage 30 m in 10 minutes, 7 days a week.

[17]The FTT, however, concluded that the Appellant had not been virtually unable to walk in 2001. It reached that conclusion on the basis of its review of the medical evidence, of witness statements from workmates from 2000 onwards and from the 2004 and 2013 video and DVD evidence. It seems to me that was a conclusion the FTT was in principle arguably entitled to reach on the evidence before it. However, the FTT seemingly failed to consider at least two pieces of evidence which apparently supported the Appellant’s case that she was entitled to higher rate mobility at the outset. The first was a GP factual report dated 29.01.2002 (and so presumably before the original decision-maker) in which the GP stated that the Appellant could walk only 0-50 m before severe discomfort [218-211]. The second was an EMP report dated 14.01.2014, and so available at the time of the 2004 renewal claim. The EMP assessed the Appellant as having “substantial impairment” in both lower limbs, noting “reduced power and sensory loss to legs; impaired co-ordination on heel to shin test” [111]. The EMP further assessed the distance the Appellant could walk before severe discomfort as being “ on average , about 20 metres” [113]. It is unclear what the FTT made of this evidence.

[18]There is a further issue with the FTT’s approach to the entitlement decision. It is clear the FTT found that the Secretary of State had shown on the balance of probabilities that the Appellant was not entitled to DLA as from the date of claim in late 2001. However, the FTT then needed to consider whether a ground for revision (e.g. under regulation 3(5)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI 1999/991)) was made out. It might be implicit in the FTT’s findings that this further condition was satisfied, but the point does not seem to be addressed head on.

[19]It is therefore arguable, notwithstanding all the counter-evidence that the FTT catalogued, that the FTT’s failure both to address the positive evidence in favour of a finding of entitlement at the date of claim and the relevant ground for revision amounts to an error of law. (2) The basis for the DLA recoverable overpayment decision

[20]The simple fact that a claimant has been paid DLA for a period for which they were not entitled to DLA does not mean the DWP has an automatic right to recover the wrongly paid and overpaid DLA. The DWP must show that the overpayment was caused by a misrepresentation of, or failure to disclose, a material fact by the claimant and indeed that all the requirements of section 71 of the Social Security Administration Act 1992 are satisfied. However, any reader of this FTT’s statement of reasons would be forgiven for not realising that fundamental principle of law.

[21]The DWP decision under appeal was a revision decision with effect from the start of the original award in 2001. The consequential overpayment decision by the DWP was based on the claimant’s alleged misrepresentation [522]. The FTT’s decision notice [577] simply states that the total overpayment was recoverable from the start of the claim in 2001. The FTT’s statement of reasons does not really help any further. In a 20-page statement of reasons which extended to 119 paragraphs the FTT actually had remarkably little to say about the original claim form for DLA. The FTT recorded the presenting officer’s reference to the Appellant’s statement at interview that she had completed the form as if it was the worst week in her life [942] at [12], which the presenting officer argued was a misrepresentation (see also the same issue arising at [949] at [44] and [955] at [87]). I can see no passage where the FTT consider in detail what the Appellant actually said about her mobility or where they consider the statement she signed at the end of the document.

[22]In this context it is relevant to consider the note of caution sounded by Judge Ward in MK v Secretary of State for Work and Pensions (DLA)

[2011] UKUT 12 (AAC)

, another case where surveillance evidence had been deployed. Judge Ward reminded tribunals of the very real difficulties involved in adjudicating upon such cases:

“17. In the present case, in my view the tribunal has lowered the burden of proof of any misrepresentation in 1992 or 1995 on the Secretary of State so far as effectively to erode it altogether. It is understandable that there should be concern that a claimant who could do the actions captured on video may have been receiving DLA without necessarily being entitled to it for the full amount or the full period and understandable that the tribunal may have had a degree of scepticism towards the claimant’s evidence and actions given that the video evidence became available in the course of an investigation into an unrelated criminal offence to which the claimant pleaded guilty, but the fundamental building blocks for recovery of an overpayment still require to be observed. To progress from a position that the claimant on the facts as now known was not entitled straight to a conclusion that he had misrepresented a material fact is to ignore the reality that medical professionals and others may also be involved in making an award of DLA (as we know happened on the later renewals in the present case) and to ignore the possibility that the DWP may from time to time make awards which, with the benefit of hindsight, are unduly generous. To do so removes the protection which section 71 provides.”

[23]In any event, whatever the rights and wrongs of the entitlement decision, this FTT has failed to show it has considered the requirements of section 71. There is no analysis of the Appellant’s statements on the claim form let alone any consideration as to whether these are statements of fact or statements of opinion.

[24]It follows again it is highly arguable the FTT erred in law by failing to explain the basis for the recoverable overpayment. (3) No reference to the Appellant’s late evidence

[25]The circumstances in which the late evidence was submitted on the Tuesday before the hearing on the Thursday are summarised at [11] above. The same issue arises in the mother’s companion appeal CDLA/5547/2014, where the (separate) extra evidence was much less substantial.

[26]In the Appellant’s case the extra evidence ran to over 350 pages. It seems the extra bundle was before the FTT panel, even though the record of proceedings has a line struck through the box on p.1 for “documents handed in pre/at the hearing...” [559], which might suggest the FTT did not have the 350 page extra bundle. However, the record of proceedings also refers to a question being put about document [676] “in 2 nd bundle”, which must be a reference to this extra bundle, given the latter started at [578]. Although the FTT’s very lengthy statement of reasons makes frequent reference to documents in the original DWP appeal bundle, I have only found two very brief passing references to the extra material in the “2 nd bundle”. At [946] there is mention of the Appellant having responded well to CBT in 2011 (at [26]) and a further reference to the Appellant having quite a lot of sick leave in 2011 (“within extra evidence 578-934” at [27]). There is, it seems, no other mention of any of the other 350 pages in the extra bundle.

[27]Although I am satisfied the extra bundle was at the hearing, I am not at all sure that all the FTT members and parties had a copy. There is no hint on the GAPS system that the evidence was issued to them all. There is simply a clerical note dated 20 August (the day after delivery and the day before the hearing) saying “F/E [further evidence] received from rep”, but no indication as to what happened to it. According to the Appellant and her representative, the FTT Judge “stated the DWP did not need a copy of the documents as it was irrelevant, nothing of any importance and they were not going to be referring to it”. That statement is not noted in the record of proceedings, but that does not mean that something along those lines may have been said. It would certainly be consistent with the fact that the 350 page extra bundle was apparently almost completely ignored.

[28]Obviously the FTT does not have to refer to all the evidence it had. Yet the extra bundle includes extensive medical evidence and detailed occupational health reports and sickness absence records at various dates over the period in issue. The testimonial letters are also quite detailed in places and contain evidence about the Appellant’s problems. What did the FTT make of them? I simply do not know, as it does not say.

[29]It is therefore highly arguable the FTT erred in law by failing to explain what it made of the extra evidence in the second bundle. (4) A procedural irregularity?

[30]On 13 August 2014 the Appellant’s representative had set out detailed reasons for seeking a postponement, referring to the need to review hundreds of pages of further evidence [556]. That request was refused [558]. It does not appear that the Appellant’s representative (a different individual but from the same organisation as at the adjourned hearing on 05.08.2014) repeated the request for an adjournment at the hearing on 21.08.2014. That may be because at the previous hearing on 05.08.2014(i) a similar application had been refused and

(ii) the FTT had acceded to a DWP application to have the case relisted on 21.08.2014, given there was a court hearing in the related criminal matter on the following day, i.e. 22.08.2014.

[31]However, the FTT should surely have considered the matter of its own initiative. It had directed on 05.08.2014 that new evidence should be filed 7 days ahead of the hearing on 21.08.2014. The Appellant lodged the 350 pages on 19.08.2014, so in breach of the FTT’s direction. The FTT should then have considered whether or not to waive the breach and admit the late evidence (rule 7 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685)). There is no indication the FTT went through that process. If it had, it might well have reasonably come to the conclusion that it could not digest 350 extra pages of evidence at such late notice. That in turn would surely require the FTT to consider whether or not an adjournment was appropriate. In making such a decision, the FTT would have to consider the overriding objective of dealing with cases fairly and justly under rule 2. There is no indication in the record of proceedings, decision notice or statement of reasons that the FTT considered the option of an adjournment at all.

[32]It might be said that this was all the Appellant’s own doing. It will be recalled the representative had only been instructed on 24.07.2014. The first postponement application (to postpone the 05.08.2014 hearing) was refused on the basis that she “previously had other representatives. [The new representative] should not have accepted instructions knowing they could not attend” [548]. The new representative explained in the second postponement application that the Appellant had lost confidence in her original representative and had struggled to find an alternative source of help.

[33]Obviously I understand the pressures on FTTs to deal with their lists expeditiously and to be robust when unreasonable or unrealistic requests are made for postponements or adjournments. However, this was a highly complex case with an overpayment of over £50,000 at stake and hundreds of pages of evidence (even before the extra bundle was submitted). There were parallel criminal proceedings which appear to have driven the FTT’s own timetable. There had not been a long saga of delays in getting the case listed, and the previous adjournment was due to the representative being taken ill. There appears to have been no attempt to consider the various considerations that may apply under rule 2. The Upper Tribunal’s decision in MA v SoS for Work & Pensions

[2009] UKUT 211 (AAC)

indicates that tribunals should ask themselves three questions:(i) what would be benefit of adjournment?;

(ii) why was party asking for adjournment not ready to proceed?; and

(iii) what would impact of adjournment be on other party and tribunal system as a whole? This tribunal did not ask itself those questions.

[34]Furthermore, in Nwaigwe v SoS for Home Dept (adjournment: fairness)

[2014] UKUT 418 (IAC)

McCloskey J held as follows:

“7. ... Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably . Rather, the test to be applied is that of fairness : was there any deprivation of the affected party’s right to a fair hearing? Any temptation to review the conduct and decision of the FtT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law. In a nutshell, fairness is the supreme criterion.” “8. ... Moreover, Tribunals must consistently give effect to the overriding objective. Notwithstanding, sensations of frustration and inconvenience, no matter how legitimate, must always yield to the parties’ right to a fair hearing. In determining applications for adjournments, Judges will also be guided by focussing on the overarching criterion enshrined in the overriding objective, which is that of fairness .”

[35]It is therefore highly arguable the FTT erred in law by failing to address the admissibility of the extra evidence and at least considering the option of a further adjournment so the Appellant’s representative could be properly prepared and all the parties had a proper opportunity to consider the extra evidence. Conclusion

[36]I repeat I have no view on whether the Appellant was or was not entitled to DLA for the past period in issue and whether she is or is not liable for a recoverable overpayment of DLA.

[37]However, I have real concerns about the fairness of the hearing on 21.08.2014 which prompts me to make the following abbreviated case management directions. If both parties agree the appeal will be allowed and the Appellant’s original appeal will be re-heard by a fresh FTT. Other matters

[38]There are two other matters that cannot escape mention.

[39]First, the Appellant asserts that “at the end of the day and after my Mum’s tribunal had been heard, members of the Tribunal Panel, the DWP fraud officer and DWP Presenting Officer were seen outside the building talking, laughing and joking together” [972]. That may or may not be true. It may be a malicious invention by an aggrieved appellant. I do not need to investigate that allegation given all the other matters above. It could, of course, be the subject of a judicial complaint. If it happened – and I express no view, and would need to ask for statements from all concerned before forming a view – it was obviously inappropriate.

[40]Second, the Appellant states (not by way of complaint, but simply as an assertion of fact as though it were entirely normal) that at the end of her hearing (i.e. approx 13.45) “I was then asked to leave the room while they discussed my mother’s case and the DWP fraud officer went to buy the panel some lunch” [964]. Again, I do not need to investigate that matter. There is no suggestion that the DWP fraud officer actually paid for the panel’s lunch, as opposed to simply buying it as their agent. However, appearances are important and if there is any truth in the assertion it was also obviously inappropriate.’ Signed on the original Nicholas Wikeley on 20 May 2015 Judge of the Upper Tribunal

Cited in 1 later judgment

AF v Secretary of State for Work and Pensions (DLA) (No2): [2017] UKUT 366 (AAC) 2017